Author: Editor

WHAT DOES BRETT KAVANAUGH HAVE TO DO WITH ZERO WASTE?In case you have not read or heard enough about Brett KavanaghBy John D. Moore, NCRA Vice President and Legal Counsel

Before being nominated to the Supreme Court, Brett Kavanagh was a judge of the US Court of Appeals for the DC Circuit. This Court frequently is asked to decide issues involving federal agencies, like EPA. EPA has extensive rules and regulations defining what is “recycling” or “recyclable” as distinct from solid waste. Hazardous waste is simply a subset of solid waste. EPA’s definitions have been used by other Courts in a variety of circumstances. Trust me that these regulations are difficult to follow with exceptions, exceptions to the exceptions, and tables purporting to summarize all these rules that are found in at least 10 places. On the other hand, “Solid waste” has never been defined by the Supreme Court notwithstanding that the Court has long declared solid waste to be an article of commerce for purposes of applying the Commerce Clause of the Constitution to local government actions involving flow control. Since Judge Kavanagh may have opportunity to shape the definitions of recycling and solid was a member of the Supreme Court, it is worth looking at Court decisions he has participated in which EPA’s definitions were challenged. EPA’s remit under the federal Resource Conservation and Recovery Act (RCRA) is to regulate landfill standards and to regulate disposal of hazardous waste. When a collector wants to salvage recyclable material from a hazardous item of waste, such as a foundry sand containing lead, this intersects with EPA’s regulatory oversight. For this purpose EPA has tried to distinguish and define “sham recycling.”

A lot of EPA’s rules were challenged by Industry Groups and the Sierra Club. Judge Kavanagh concurred in the majority (2-1) opinion. It really isn’t possible to summarize this case with any brevity since there were several discreet issues in interpreting interlocking regulations with extensive legislative and regulatory history found in the Federal Register. This cannot be quickly outlined. But there were two aspects of this opinion, API v. EPA 862 F.3d 50 (DC Cir 2017), that I thought reflected on Judge Kavanagh’s suitability to serve on the Supreme Court. One, the majority was able to comprehend an enormous regulatory scheme; and 2) the opinion reflects an understanding that RCRA and EPA regulations are not aimed at “materials that otherwise would become solid waste.”

This first impression relates to “qualification” to serve on the Supreme Court. As we have seen, these “qualifications” are not defined or even commonly understood, let alone uniformly applied. It’s a little like voting for the MVP in professional sport; it’s in the eye of the beholder and reflects the values of the beholder. I have observed in law practice a similar definitional problem. In child custody disputes, the overriding concern is the “best interests of the child.” And who could argue with that? But divorcing parents often have dissimilar views of what this means and their view is often colored by their perception of the other contestant for custody. In a no-fault divorce state like California there is no forum for a divorcing spouse to say why the other spouse is so bad. So that need for emotional outlet gets transferred unfortunately onto a fight over what is best for the child; with ugly results. You could make a good case that the framers of the Constitution intended that the selection of a Supreme Court justice with the “advise and consent of the Senate” be a political process and that the political party with the majority power got to use its own interpretation of qualifications for the office. And if the Senate majority decides that a past sexual assault and lying to the Senate were not disqualifiers, the framers would say “so be it”.

If one likes Judge Kavanagh’s views about distinguishing solid waste from recyclable and that “like” satisfies the “qualification” requirement, this is using a political view to make a political decision. And just like tribal societies in Central Asia, history is a cycle of those who are in and those who are out and where those that are in take what they want without regard to the overall health of the nation. I am sure that the framers did not intend this to happen. Many writers have opined how our country got to this state but few propose a solution to return to democracy and polite discourse in favor of the best interests of the country. When our leaders behave like spoiled children they are not acting in the best interests of the country.

Politics works in different and strange ways. Most blue state voters would agree that Earl Warren was among our greatest Supreme Court justices. But his appointment, having a very California flavor, was as political as any. There were 3 prominent Republican politicians who coveted the Presidency in the early 1950s. One was Warren, a popular 3 term Governor of California (and former Alameda County District Attorney who sought the death penalty), Senator William Knowland of Oakland (and owner of the Tribune then) who was the Senate Majority leader (the Mitch McConnell position) and Vice-President Richard Nixon of Whittier. The popular version of this story is that Knowland and Nixon went to President Eisenhower and asked that Warren be made Chief Justice to get him out of California politics. Many Republicans came to regret that choice and campaigned in the 1960s to have Warren impeached. Through this terribly political process came the one Justice with the skill to insist that Brown v. Board of Education end racial segregation and that the Court so rule unanimously to preempt any question of its legitimacy. Another Justice on that Court was Hugo Black of Mississippi who was a member of the Ku Klux Klan at the same age that Judge Kavanagh was throwing down brewskis. If either Warren or Black’s confirmation hearing resulted in them yelling about Democratic party conspiracies, I am not aware of it and seems unlikely given their temperament.

It’s a scary time. Foreign countries may be influencing our elections by subterfuge, questioning what information and which news broadcaster can you trust. Or maybe they haven’t been and that is part of the subterfuge. And who has the skill to figure that out? This country has weathered many crises. It should have the resilience to withstand Donald Trump and Brett Kavanagh. But maybe Kavanagh will surprise like Earl Warren did. You may not want to see either politics or sausage being made but you can hope the output is palatable.

RESPONSES TO THE COMMENTS OF LOCAL GOVERNMENTS TO THE LAST INFORMAL DRAFT OF THE AB 1383 REGULATIONS, MAY 16, 2018By Arthur R. Boone, Center for Recycling Research (CRR), 07/20/18

PREFACE: Our editor has asked for some prefatory remarks to my long July memo to CalRecycle on their plans enforcing for SB 1383 (short-lived climate pollutants: methane emissions: dairy and livestock: organic waste: landfills, enforcement). I think we need to go back to AB939 as the foundational document for public policy on waste reduction and recycling and acknowledge that law’s shortcomings. The state had lofty goals and fines to get local programs moving, but not really too much insight or direction for those programs. The effect of AB 939 was significant in moving curbside programs in 1990 from 30 communities to over 400 by 1995, but, in truth, the measurable impact of all these programs has been modest. California has a much garbage buried yearly now as it did 25 years ago; hardly a claim to fame. Granted, a considerable population growth in that time but if 42 million tons in 1989 was outrageous, the same amount in 2015 should be no less outrageous

So the recent state laws on WR&R have taken a different tack. No more admonitions and lofty goals, now we want measurable programs with measurable results. The public responses to the draft regs discussed below are sometimes commended, but elsewhere the locals like things the way they are and are expecting Sacramento will bend to their will. Nit-picking requirements are never fun to work under, but the emphasis on programs inputs and not on measurable success in WR&R has pushed (or at least allowed) the state to take a new approach, which is not comfortable to locals who’ve had their own way for a long time. Glad to answer questions and to defend my writings. — ARB

In the last several years the legislature has taken notice that the best intentions of its 1989 act, AB 939, have not been met by programs sponsored by local governments that have merely kept the volume of materials disposed of as solid wastes at a standstill, merely keeping pace despite the ever-growing population of our state. In 1989, 42 million tons of materials were landfilled or incinerated; in 2014, 25 years later, the state had the same amount of garbage to be buried.

939 was a very unspecific law where the state merely set goals for local governments’ program achievements but gave little specific direction, not unreasonable with the novelty of diverting materials for recovery in a time without a national war or serious materials shortages. Local governments responded to the state’s challenge with a number of voluntary (some mandatory) programs and made major attempts to redirect the flow of unwanted materials from landfills to beneficial uses in “the stream of commerce.” While somewhat successful on a program-level basis, in looking now at the big picture, (42 million tons garbage then, 42 million tons now), clearly more efforts have been needed.

I believe that the Legislature, in enacting AB 341 in 2011, AB 1828 in 2014 and AB 1383 in 2016, has new goals for the state that will create programs biting more deeply into the volumes of waste. The fact that the CalRecycle has chosen a detailed reporting system to monitor compliance with these new state directives is certainly inconvenient for those answering all the questions but must be seen as a state agency frustrated by the lack of measurable achievement by local governments and its own duty to the legislature to assist local governments to now comply with these new strictures.

In reviewing the comments of earlier commentators, mostly from local governments, I would make the following comments.

CRR Comment: I support the regulations as they stand. Mixed waste processing (MxWP) has become a panacea for waste haulers who do not wish to disturb the disposal patterns of their customers; “leave it to us,” they say. To my knowledge there have been no peer-reviewed studies of MxWP that would look at two questions:

1) What percentage of the organic materials arriving for separation are in fact removed and accepted at a licensed compost yard?

2) What is the level of contamination in the separated organic materials? Here we have 140 million dead trees standing and falling in our state’s forests that are not suitable for paper making and we are taking all the scrap paper in a mixed load and delivering it to a compost yard; that doesn’t make sense to me. Sources known to me recount that as little as 30% of the organics presented for separation in a mixed waste processing facility in fact end up at a compost yard.

In June, 2015, Gershman, Brickner & Bratton, Inc. prepared a report, THE EVOLUTION OF MIXED WASTE PROCESSING FACILITIES: 1970-TODAY for the American Chemistry Council [55 pages] which states, “legitimate questions remain regarding recovery rates, quality and contamination of recovered materials, and the commercial readiness of the technologies” p.1.

All the European studies have found that source-separated organics deliver the most and the best organics for composting and the EU has recently (November 2017) ordered that, effective 2024, all organics collected for treatment and beneficial use throughout the EU (over 500 million people) will be source-separated. No more mixed waste processing in Europe. Details available.

CRR Comment: I disagree. I have seen loads of such materials delivered to a WWTP that are already bubbling up, decomposing before they arrive to be ingested. The major reason that landfills are no longer trusted to capture methane from deposited solid waste decaying in an anaerobic environment is because science proved in the decade ending in 2010 that much of the methane produced in landfills escaped to the air before gas capture systems were installed. If the same thing happens at a WWTP, we see no gain in this practice.

Los Angeles County, page 2 of its 19-page memo, objects to the heavy burden that the state is laying upon it.

CRR Comment: The numbers cited above tell a sad story; nobody wins the race by treading water. Perhaps the legislature sees the need, after almost 30 years, to try some new techniques to reduce landfilling in the state. Anyone looking at the chart on page 10 of the August 2017 report from CalRecycles entitled STATE OF DISPOSAL AND RECYCLING IN CALIFORNIA/ 2017 UPDATE can see that the state has made no progress in increasing recycling since 2010 and certainly some new approaches need to be tried, admittedly at the expense of the county and its cities. It costs more to keep a person in a hospital for a day than to bury them but we don’t rush to do that; similarly, keeping used resources in the stream of commerce, a matter which the Chinese rush to acquire our valued discards resolved for 20 years but is no more, is more valuable than lower garbage rates or more landfilling.

Los Angeles County, page 8 of its 19-page memo, that “Considering there is already a shortfall in organic waste capacity statewide,…”

CRR Comment: I think this is an inaccurate statement. The SF Bay area of nine counties has had adequate composting facilities available to its communities because the local governments there have invested in expanding green cart collections program to include food debris and soiled papers and the composting service providers have increased their facilities to accommodate the increasing volumes of materials. In the Bay area, several million tons of organic materials each year are diverted from landfill disposal (exact numbers are not available); Los Angeles County has only itself to blame for the absence of capacity there. At the last public hearing at D3R, I invited Mr. Mohajer to tour our Bay Area facilities with me; he has declined the invitation.

Los Angeles County, page 10, bottom, claims that biomass conversion to create syngas as a vehicle fuel is a suitable end destination of unspecified organics.

CRR Comment: The state is currently debating the fate of 130 million dead and dying trees in its forests. I must comment that, if by biomass conversion the County means the burning of wood chips, it is now well established by science that the emissions of such burn plants varies and that a plant without adequate emissions controls is as bad as a coal-fired power plant. There are many other end markets for clean wood discards that need to be explored before adding fuel to existing power plants or modifying older plants to be less “dirty.” If the billion dollars to be spent on clean green power for vehicles is any indication, all burning of carbonaceous products is passé.

City of San Jose, Page 2, middle “CalRecycle should add mulch to the list of allowable recovered organic waste products.”

CRR Comment: This is an excellent suggestion; currently there is no tracking of mulch products and they are much cheaper to produce than compost and are very attractive materials for a wide range of agricultural users. Mulch can be made and screened from mixed organics loads and the haulers can make this a DIY project and avoid compost facility fees.

City of San Jose, page 2, bottom. Item #2. “Do landscape companies fall under self-haul generators who must self-haul to be a composting facility?

CRR Comment: As long as anyone can say, landscape companies have been hauling vegetative materials from diverse generators’ properties for conversion to beneficial uses like mulch and compost. As a small businessman for the last 30 years, I strongly oppose any attempt of state or local governments to see this work as requiring solid waste management controls. I would also suggest that if the local ensconced hauler fails or refuses to offer source-separated organics [SSO] collections at a reasonable price, it should do as Oakland did about the year 2000 when it allowed others than its franchised hauler to collect SSOs.

City of Sunnyvale, pages 3 and 4, “We will gain the highest levels of diversion by combining source-separation PLUS post-collection sorting from the black carts… We ask that CalRecycle revise the regulations to allow diversion measurement of the entire system, not just individual cart streams or facilities.

CRR Comment: Generally, the same concerns as with #1. Looking at all of the public agencies with opinions on mixed waste processing as the best method to recover organics, the City of Sunnyvale would be one of the best informed because for many years that was its prime method to gather organics from residential materials for composting. It has recently implemented a program to collect SSOs as a feedstock for an animal feed operation located in Santa Clara.

When I signed up for the Chou Hall tour on a short notice, I wondered how many people would actually show up. I was surprised to see at least 15 people at the entrance of the UC Berkeley Haas School of Business. The crowd was good mix of waste industry folks, consultants, non-profits, sustainability managers from private companies and curious individuals. Kudos to NCRA’s Memberships, Events and Activities Committee (MEAC) who quickly coordinated the tour with the UC team and Juliana Gerber for sending out the sign up emails to orchestrate a successful event within a couple weeks.

It wasn’t hard to spot the right group when every attendee had either a reusable coffee mug or water bottle. We were greeted by the Green Team – Danner-Doud Martin, Assistant Director of the Berkeley-Haas International Business Development Program, Jessica Heiges, a Master’s student in the College of Natural Resources and NCRA Member Lin King, Cal Zero Waste Manager and veteran at championing university recycling programs.

After a quick round of introductions, we were made aware of Haas’ guiding principles etched on the walls in front of us.

Question the Status Quo

Confidence Without Attitude

Student Always

Beyond Yourself

So it’s no surprise that Chou Hall is aiming to be the first academic building to achieve the trifecta in Green Building certifications: LEED Platinum, WELL and TRUE Zero Waste.

A fully donor funded building, the 6 story building has received $60m in funding for the construction of the 80,000 sq ft building. It consists of 8 tiered classrooms with a total of 858 classroom seats, a 300 person event space, numerous study rooms and a cafeteria.

From the moment you enter the building, you can feel the openness in design and a freshness in architectural style. Having opened only a year back, Chou Hall has been making steady progress towards diverting more than 90% of discards from landfill every month. This is a mandatory requirement by TRUE, among others that ensure contamination is kept under 10% and mandates the upper management to adopt a Zero Waste policy.

There is around 24,000 sq ft of exterior windows that provides ambient lighting, reducing the need for interior lighting, thus reducing electricity consumption by 38% compared to similar sized buildings. Not yet functional is a solar installation on the 6th floor balcony, with sweeping views of the Bay Area, that also provides shade. A greywater recycling system that harvests rainwater was installed to reduce water consumption by 40%.

Pack-in, Pack-out. Don’t Pout! – Everything in the cafeteria is served in reusable-ware, compostable, or recyclable containers. To top it all, Chou Hall does not have any landfill bins. You heard it right! According to Danner, their pack-in, pack-out policy for trash helps students and staff be aware of the waste they generate. The students are encouraged to find the landfill bins outside the building. To facilitate that, the Green team switched to a vendor that made compostable products that are 100% plant based and BPI and ASTM D6400 certified. All the paper has 100% post-consumer recycled content. There are also no chips or candy bags available in the cafeteria and that was an uphill battle that all departments eventually came to common ground on. Jessica Heiges made an interesting analogy to the no-indoor-landfill-bins policy likening it to the smoking ban on campus. That it takes a while for people to get used to and then becomes part of their routine. She also said that very little food waste is generated. Any leftovers are usually placed out on campus and is gone within minutes.

But what about all that contamination? – Oh yes! Of course. That’s where the frequent Zero Waste audits come in that are needed for the monthly reporting. The Zero Waste audits emphasize keeping track of specifics like the source of generation, category and amount. For example, the recycle bin in floor 3 had a lot of food scraps in clamshells. The Green Team meets as often as weekly to discuss their progress and make tweaks to their program. They also meet monthly with other departments and stakeholders like custodial or cafeteria staff to discuss solutions to roadblocks. Lin says contamination is also countered by consistent signage and color coding the bins and lids throughout the building. Using pop-off lids makes it easier for custodial staff to empty the bins on a regular basis to avoid overflow. Danner added that surveys were immensely helpful as an educational tool not just to measure feedback from people but to communicate how well they are doing and why they are doing it. With the mindset is to encourage research and innovation, rather than telling the staff and students what to do, Lin says the Green Team constantly comes up with innovative ideas to battle contamination issues.

With that our tour concluded and we went back to the cafe downstairs for lunch. We sat in the patio under the mighty redwoods impressed by the determination of the Green Team who were all there on a voluntary basis. We shared the latest information on the current economic condition and how they would shape the Zero Waste future.

Who’s next – With UC’s goal to achieve Zero Waste by 2020 and to reduce MSW per capita by 25% by 2025 and 50% by 2030, UC Berkeley’s Haas School has taken a strong step forward. They hope to apply their learnings from Chou Hall to other buildings on campus, share them with other campuses in the UC system and universities in the country. So, it isn’t unusual for UC Berkeley to embark on this journey, when they’ve made it a habit to ask, “Isn’t there a better way to do this?

NIKHIL BALACHANDRAN, NCRA MEMBER SINCE 2017
I have a relentless desire to find solutions that address sustainability and process efficiency problems by building products from inception to scale with a passion that derives its inspiration from climbing mountains and swimming in open water. My encounters with litter during hiking and open water swimming have been defining moments that have compelled me to switch my career to keep trash out of the environment.

Now CEO of Zabble Inc., I live in Walnut Creek and am happy married to Diana. We are expecting a daughter in the coming weeks. My professional goal is to build a company that provides services and tools to quantify and categorize waste to enable a circular economy that eliminates waste, is financially efficient and protects Earth.